Fair question — recent cases on conduct dismissals

Carmelli Bakeries v Benali shows that even where an employee admits gross misconduct, there is no guarantee that the resulting dismissal will be fair. The EAT upheld a tribunal finding that an employee had been unfairly dismissed and victimised when he was summarily dismissed after using non-kosher jam at a strictly kosher bakery. The EAT found that his grievance and discrimination claim three years earlier, followed by ongoing requests for reasonable adjustments in relation to his disability, had led the employers to see him as a ‘problem employee’ as a result of which they did not consider any of the surrounding circumstances (in particular, the employee’s longstanding clean disciplinary record) which might have led them to show some leniency.

On the same theme, in Brito-Babapulle v Ealing Hospital NHS Trust, the EAT held that the fact that the employer was entitled to regard an employee’s behaviour (treating private patients while on sick leave) as gross misconduct did not inevitably answer the question of fairness — whether the dismissal was within the ‘band of reasonable responses’ by the employer. There has to be some consideration of whether mitigating factors (long service, the consequences of dismissal and having a previously unblemished record were mentioned) may be such that dismissal for gross misconduct is not reasonable…

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